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At the beginning of August the UN Human Rights Committee issued its third report on the human rights situation in Azerbaijan. The Committee is a UN body, established under the International Covenant on Civil and Political Rights (ICCPR), with 18 members who are elected by the UN General Assembly and serve on the Committee as experts in their personal capacity, not as representatives of their Governments. The authority of the Committee’s human rights monitoring stems from the fact that its membership represents all parts of the world. At regular intervals, the Committee reviews the situation of human rights and issues recommendations to state authorities.
The expressed views and recommendations on Azerbaijan reveal that the Committee has taken a long, hard look at situation of the media and journalists in the country, especially in regard to criminal defamation. The Committee stated that it remains concerned by reports of a pattern of criminal libel suits against journalists. It recommended that the legislation on defamation be brought into line with Article 19 of the ICCPR “by ensuring a proper balance between the protection of a person's reputation and freedom of expression”. In this respect, the authorities in Azerbaijan are urged to consider “finding a balance between information on acts of so called “public figures”, and the right of a democratic society to be informed on issues of public interest”.
The language of the Committee may sound vague or confusing for non-lawyers. So let me explain what is meant by a “proper balance between protection of personal reputation and freedom of expression” from the view-point of international law.
Criminal or civil defamation?
The first question is whether criminal defamation should remain in Azerbaijan. Article 147 of the Criminal Code makes it a crime to discredit the honour and dignity of any person or undermine his/her reputation. In addition, Article 148 makes it a crime to deliberately humiliate the honour or dignity of a person, expressed publicly in an indecent form. Often journalists are prosecuted under these provisions when they expose, for example, cases of high-level corruption or publish jokes or caricatures about political leaders.
Although similar provisions exist in other countries, in contrast to Azerbaijan, journalists in Europe are rarely prosecuted for defamation. Instead, affected parties sue journalists for compensation in civil law proceedings. Moreover, an increasing number of countries have opted for decriminalisation of defamation motivated by concerns for freedom of expression and by a desire to limit the state expenses for criminal prosecutions.
To ensuring protection for free expression, both the UN Human Rights Committee and the European Court of Human Rights have held that States should show restraint in resorting to criminal proceedings, particularly if other means are available to reply to unjustified attacks by the media. With view of this position, ARTICLE 19 calls on the authorities in Azerbaijan to decriminalise defamation. If this option is chosen, persons affected by defamation would not lose their right to turn to the courts. It would remain possible for them to sue journalists for civil compensation. At the same time, it would become less likely for freedom of expression in Azerbaijan to be severely affected since civil trials and responsibility are less restrictive than criminal ones. Not to mention the criminal sanctions.
In December last year the European Court of Human Rights found that Azerbaijan has violated the right to freedom of expression of Mr. Mahmudov and Mr. Agazade from the Mukhalifat newspaper. It was the first defamation case against Azerbaijan. The Strasbourg court established that both applicants failed to act in good faith and in accordance with the ethics of journalism. Nevertheless it found a violation of their rights.
The violation in this case resulted from the “very severe” sentences of Mr. Mahmudov and Mr. Agazade, who were sent to prison by Azerbaijani courts for five months. One may say that five months’ imprisonment is not a long sentence. This is not the view of the Strasbourg Court. For it, imposition of a prison sentence for a press offence is not compatible with journalists' freedom of expression unless in exceptional circumstances, for example, in cases of hate speech or incitement to violence. Moreover, even suspended prison sentences are regarded as disproportionate restrictions on freedom of expression.
As noted by the European Court of Human Rights, the Criminal Code of Azerbaijan provides for “very severe” punishments for criminal defamation. Let me remind you of the most serious sanctions provided for defamation in Azerbaijan. Those found guilty of slander can be sentenced to corrective work for the term of up to one year or imprisonment for up to six months. Sanctions of a similar nature and length also are provided for insult. Due to the incompliance of domestic laws with international standards, journalists sentenced by Azerbaijani courts to imprisonment for defamation will win their cases in Strasbourg.
Balancing exercises for courts
Azerbaijan is legally bound to protect the right to freedom of expression in accordance with international law. Azerbaijan’s Constitution establishes that international agreements to which Azerbaijan is a party constitute an integral part of the legislative system of the Azerbaijani Republic. Further, Article 151 of the Constitution provides that whenever there is disagreement between domestic laws and international agreements to which Azerbaijan is a party, the provisions of international agreements shall trump. Hence, courts in Azerbaijan should take into account the international standards of freedom of expression.
In line with these standards in defamation cases, one recommendation of the UN Committee was that judges must be able to determine the correct balance between protecting the reputation of public figures and the public interest of ensuring and maintaining a free press. As the public interest in free press is very strong, it weighs heavily in the balance. In contrast, it has been established by the European Court that the limits of permissible criticism are wider with regard to the Government and public figures than in relation to private citizens. The balancing exercise should be carried out not only when courts determine the responsibility of journalists but also when they chose the type and size of the sanction, if the latter are found guilty.
This summer is hot in Baku, not only for the journalists who were convicted of defamation but also for the Azerbaijani authorities who received well-deserved criticism about the human rights situation in the country. The UNHRC recommended that the defamation law be revised. My hopes are that the forthcoming changes will be in line with international standards of freedom of expression.